Professor Pierre de Vos, undoubtedly one of South Africa’s leading academics on constitutional law, says that it would be constitutionally impermissible to ban a song such as the “shoot the boer” one outright on the basis that it constitutes hate speech.
The professor looks at Sections 10 and 12 of the Equality and Prevention of Unfair Discrimination Act and says that “what is required to establish that hate speech has occurred, is for us to focus on the intention of the person who uttered the alleged hateful words or sang the alleged hateful song”.
He concludes that the assertion by ***Bono “that it is all about when and where you sing such a song is therefore spot on”.
My view on “shoot the boer” is exactly the opposite of the Western Province supporter (says it all really).
To my mind, as set out in the article linked to above, the question is whether in South Africa in 2011 Julius Malema and the ANC should be promoting a song that calls upon listeners to kill farmers?
That does not detract from the fact that it remains, in my opinion, wholly inappropriate and illegal — not simply because the courts have banned it — because of my reading of Sections 10 and 12 (see the prof’s link) when read with Section 16 of the Constitution.
16(2)c which reads :
The right in subsection 16(1) does not extend to c “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.
Section 16(2)c is not an added requirement to 16(2)b which says b “incitement of imminent violence; or” but rather a separate exclusion on its own.
Therefore the exclusion stands separate, is not required to be imminent and, again in my humble opinion, covers the conduct complained of by the Afrikaner community.
I would also be prepared to argue that the threat is indeed imminent in a legal context.
In terms thereof I would suggest reading any substantial newspaper in South Africa over a few days to get an idea of the plight of farmers.
Just to answer a few questions I’ve been asked on my previous article.
Banning this song is not like any other because farmers are being murdered every week. So if its context that is being sought it seems to me to be bloody-minded to overlook this.
No it is not like other items being claimed by the various groups as part of their heritage because, for example, the Voortrekker Monument is not calling upon people to murder other people today. As such it does not pose a danger to anyone as things stand.
If people take offence at what it represents then by all means use the regular legal channels to make out a case for having it used for some other purpose.
While some would suggest that a gathered mass being told to kill farmers would not listen to that song’s advice I would humbly beg to differ. History is littered with songs and banners that acted as a catalyst to carry out extremely brutal acts.
What is clear is that — incredibly to my mind — for some reason the murder of farmers is being weighed up against the right to freedom of expression and losing.
That at a time when they are under murderous attack people are actually adamant that a song calling for them to be killed is considered a symbol of our free speech.
Where then do people propose the courts draw the line between Section 11 (right to life) and Section 16 of the Constitution?
After a Rwanda?
Would another Holocaust be enough?
While you are being massacred you have the right to say you’re not happy about it?
Everyone conveniently forgets that farmers are being murdered left, right and centre. At what point would you suggest it becomes imperative to say “kill the farmer” should be banned?
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***In the interest of fairness many supporters of Bono say that the quotes used by me from the Sunday Times are not accurate or within context. The Sunday Times says that they are. While this debate goes on my apology to Bono, U2 and whoever else might have taken umbrage if there was a misquote or context not included.
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